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Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89109

ANN-MARTHA ANDREWS Nevada Bar No. 007585 AAndrews@LRLaw.com LEWIS AND ROCA LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89169 (702) 949-8200 (702) 949-8398 (fax) JASON M. KERR Nevada Bar No. 007773 JasonKerr@ppktrial.com PRICE PARKINSON & KERR, PLLC 5742 West Harold Gatty Drive Salt Lake City, UT 84116 Telephone: (801) 530-2900 Facsimile: (801) 530-2957 Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
WESTERN HOLDINGS, LLC, a Nevada limited liability company Plaintiff, vs. METABOLIC RESEARCH, INC., a Nevada corporation, and DAVID P. SUMMERS an individual,

Case No. 3:13-cv-440

COMPLAINT AND JURY DEMAND

Defendant.

Plaintiff WESTERN HOLDINGS, LLC (Western or Plaintiff) for its Complaint against defendants METABOLIC RESEARCH, INC. (hereinafter Metabolic) and DAVID P. SUMMERS (hereinafter Mr. Summers) (collectively Defendants), alleges and avers as follows:

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Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89109

INTRODUCTION This is a dispute regarding Defendants infringement on patent rights licensed to Plaintiff. In 2003, Nutraceutical Development Corporation (hereinafter NDC) and Western entered into an Exclusive License Agreement (Agreement) to license NDCs patented methodology for creating a dietary supplement ingredient, as set forth in US Patent No. 7,074,812 (the Patent). The technology embodied in the Patent is administering nicotine or nicotine acetylcholine receptor agonist in combination with exercise to stimulate muscle mass. In 2003, when Western entered into the Agreement with NDC, Mr. Summers was the CEO of NDC and signed the Agreement on behalf of NDC. Pursuant to the Agreement, Western sublicensed the rights to develop a dietary supplement using NDCs patented methodology to Novex BioTech, LLC (Novex). Novex developed a product called Endothil-CR utilizing the technology embodied in the Patent. Endothil-CR is a dietary supplement product that, among other things, is designed to assist muscle growth, increase body strength, and increase muscle mass. A key ingredient in Endothil-CR is green tomato extract which naturally contains nicotine. Novex began to sell Endothil-CR in 2005. In reliance upon the protection provided by the Patent, Novex invested significant sums of money developing, marketing, and selling Endothil-CR. At some point after executing the Agreement on behalf of NDC, Mr. Summers left NDC and became an officer and director of Metabolic. Mr. Summers developed a nutritional supplement product called Stemulite, which he licensed to Metabolic. Stemulite utilizes the technology embodied in the Patent and therefore infringes the Patent. Stemulite was and is marketed as a product to increase muscle mass. One of Stemulites ingredients is eggplant extract, which naturally contains nicotine. Neither Mr. Summers nor Metabolic received a license from NDC or Plaintiff to produce a product based on the methodology embodied in the Patent.

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Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89109

The Agreement explicitly gave both NDC and Western the right to prosecute infringement claims. Pursuant to the Agreement, Western had to notify NDC of the infringement. In the event NDC elected to not prosecute the infringement claim, Western could then prosecute the infringement claim on its own behalf. In December 2012, Western notified NDC of Defendants infringement of the Patent. NDC did not exercise its right to prosecute the infringement claim against Defendants. Therefore, Western has elected to exercise its right to prosecute the infringement claim against Defendants. PARTIES 1. Plaintiff Western Holdings, LLC (Western) is a limited liability company

organized and existing under the laws of the State of Nevada, with its principal place of business located in Carson City, Nevada. 2. Defendant Metabolic Research, Inc. is, upon information and belief, a

corporation organized and existing under the laws of the State of Nevada, with its principal place of business located in Las Vegas, Nevada. 3. Defendant David P. Summers is, upon information and belief, an individual

residing in Texas. JURISDICTION AND VENUE 4. 5. 1338(a). 6. The Court has personal jurisdiction over Mr. Summers because he has This action arises under the United States patent laws, 35 U.S.C. 1, et seq. This Court has subject matter jurisdiction under 28 U.S.C. 1331 and

transacted business within this State, contracted with a Nevada business entity, and was an officer and director of a Nevada business entity. Thus, this Court has both general and specific personal jurisdiction over Mr. Summers. 7. This Court has personal jurisdiction over Metabolic because it is a Nevada

entity. Thus, this Court has both general and specific personal jurisdiction over Metabolic.

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8.

Venue is proper in this District pursuant to 28 U.S.C. 1391 and 1400

because Metabolic is a Nevada business entity. Moreover, Defendants have transacted business which infringed on Plaintiffs rights under the Patent in this District. FACTUAL ALLEGATIONS

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Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89109

9.

Effective July 1, 2003, Plaintiff Western entered into an Exclusive License

Agreement (Agreement) with NDC to license NDCs patented methodology for creating a dietary supplement ingredient, as set forth in US Patent No. 7,074,812 (the Patent). A true and correct copy of the Agreement is attached as Exhibit 1. 10. At the time the Agreement was signed, NDC had not filed the Patent. On or

about August 2, 2003, as required by Section 2.5 of the Agreement, NDC filed a provisional patent application, Application No. 10633325. 11. On or about July 11, 2006 the United States Patent and Trademark Office

issued the Patent. A true and correct copy of the Patent is attached as Exhibit 2. DEVELOPMENT, MARKETING AND SALE OF ENDOTHIL-CR 12. Pursuant to Section 3.5 of the Agreement, Western sublicensed the right to

develop and manufacture a dietary supplement utilizing the technology embodied in the Patent to Novex. 13. The technology covered under the Patent includes the administration of

nicotine in combination with exercise to develop muscle mass. 14. Novex spent significant sums of money developing a dietary supplement

product called Endothil-CR utilizing the technology embodied in the Patent. EndothilCR is a dietary supplement product that, among other things, is designed to assist muscle growth, body strength, and increase muscle mass. 15. Endothil-CR contains green tomato extract as a primary ingredient. Green

tomato extract naturally contains nicotine.

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16.

Novex began to market and sell Endothil-CR in 2005. Novex has spent

significant sums marketing Endothil-CR. 17. Western negotiated and relied upon NDCs promise in the Agreement to

obtain and maintain the Patent. Western obtained NDCs promise of exclusivity to protect its investment in Endothil-CR. Western understood that no competitor could utilize the technology embodied in the Patent to create competing products. Without NDCs promises of exclusivity, Western would not have entered into the Agreement and Western would not have invested significant sums developing and marketing Endothil-CR. DEFENDANTS INFRINGING PRODUCT

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Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89109

18.

From December 2003 to March 2009, Mr. Summers was not actively

involved in the management of NDC, but instead was actively involved in other businesses, including as an officer and director of Metabolic. 19. In 2007, Mr. Summers licensed to Metabolic the rights to develop a product

based on intellectual property Mr. Summers claimed to own. Defendants subsequently developed and marketed products which violate the Patent, marketed and sold under the brand name Stemulite. 20. Stemulite has been marketed as a product to accelerate and enhance the

building of muscle tissue and contains eggplant extract as a primary ingredient. Eggplant extract naturally contains nicotine. 21. Defendants marketing of Stemulite as a muscle building product violates

Westerns rights under the Agreement with NDC. RIGHTS TO PROSECUTE INFRINGEMENT UNDER THE AGREEMENT 22. The Agreement granted rights to prosecute infringement claims to both NDC

and Defendant. 23. The Agreement requires Western to notify NDC if Western is aware of

infringement of the Patent. In the event NDC elects to not prosecute the infringement claim, Western can prosecute the infringement claim on Westerns own behalf.

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24.

Western notified NDC of Defendants infringement in December 2012.

NDC has elected to not prosecute the infringement claim against Defendant. Therefore Western has elected to exercise its rights under the Agreement and sues Defendant for infringing the Patent. CLAIMS FOR RELIEF FIRST CAUSE OF ACTION INFRINGEMENT OF PATENT RIGHTS 25. herein. 26. Plaintiff acquired exclusive rights to the Patent via the Agreement between Western reasserts the allegations of paragraphs 1-24, as if set forth in full

Western and NDC. 27. Western and Novex invested significant sums of money developing

Endothil-CR, a product based on the technology embodied in the Patent. 28. On information and belief, Defendants developed Stemulite, a product

which is based on the same technology embodied in the Patent because it contains nicotine and is marketed as a muscle building dietary supplement. 29. As a result of Defendants infringement on Plaintiffs exclusive rights to the

Patent, Plaintiff has been and continues to be injured. Plaintiffs injuries include, but are not limited to, lost revenue and profits, a diminishing of Plaintiffs goodwill and reputation, lost sales, and damage to Plaintiffs existing and potential business relations. Plaintiff is entitled to a full recovery of patent infringement damages against Defendants, including special, indirect, incidental, and consequential damages. 30. As a result of Defendants infringement on the Patent, Plaintiff has been

damaged and is entitled to be compensated for such damages, pursuant to 35 U.S.C. 284, in an amount to be determined at trial. 31. Plaintiff is entitled to its attorney fees and costs as a result of Defendants

infringement on Plaintiffs rights to the Patent because this is an exceptional case under 35 U.S.C. 285. WHEREFORE, Plaintiff requests the following relief from the Court: -63689597.1

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1. 2.

A judgment that Defendants have infringed the Patent. A judgment and order requiring Defendants to pay damages resulting from

Defendants infringement on Plaintiffs rights to the Patent including, but not limited to, lost revenue and profits, the diminishment of Plaintiffs goodwill and reputation, lost sales, damage to Plaintiffs existing and potential business relations, and reimbursement for the sums spent by Western and Novex developing, marketing, and selling Endothil-CR in reliance upon the Agreement and the protections bargained for and promised by NDC. 3. A judgment and order requiring Defendants to pay treble damages to

Plaintiff to compensate for Defendants willful and deliberate infringing acts in accordance with 35 U.S.C. 284. 4. A judgment and order that this is an exceptional case requiring Defendants to

pay Plaintiffs costs and attorney fees in bringing this action under 35 U.S.C. 285. 5. 6. For pre-judgment and post judgment interest as allowed by law. For such other and further relief as the Court deems necessary.

DATED this 15th day of August, 2013. LEWIS AND ROCA LLP By /s/ Ann-Martha Andrews ANN-MARTHA ANDREWS Nevada Bar No. 10086 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89169 and PRICE PARKINSON & KERR, PLLC JASON M. KERR Nevada Bar No. 07773 5742 West Harold Gatty Drive Salt Lake City, UT 84116 Attorneys for Plaintiff

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